Canada not following U.S. steps to ban alcoholic energy drinks

OTTAWA — Health Canada is maintaining that pre-mixed, alcoholic energy drinks can be sold — even as the U.S. government is set to act on the products.

The U.S. Food and Drug Administration is expected to issue warning letters to manufacturers as early as Wednesday, declaring that caffeine is an unsafe food additive to mix with alcoholic beverages, New York Democratic Senator Charles Schumer said Tuesday, in a move that will effectively ban them.

But in Canada, food and drug regulations say pre-mixed alcoholic energy drinks are OK as long as the caffeine is derived from natural sources, usually guarana. Health Canada issued a clarifying letter earlier this year to provincial liquor boards to make this clear.

Since then, Health Canada has convened an expert panel to review the safety of regular energy drinks, which are regulated as natural health products.

The panel — which conducted a one-day meeting to review the scientific information and submissions from industry — was not asked to address pre-mixed alcoholic versions, Health Canada said in a statement Tuesday.

In the meantime, the federal agency continues to warn consumers not to mix standard energy drinks with alcohol.

Caffeine is a stimulant and alcohol is a central nervous system depressant, raising the risk of injury because people don't notice the effects of alcohol when mixed with caffeine.

These products — available at convenience stores and pitched to young people as a natural health product to help them stay alert — are formulated differently than the pre-mixed, alcoholic ones. In addition to containing naturally derived caffeine, regular energy drinks also contain the direct addition of caffeine and other elements not permitted in alcoholic versions, like Rockstar+vodka, including vitamins, minerals and taurine.

In the United States, the FDA did not respond to a request for comment on the status of its yearlong review into the safety of alcoholic energy drinks.

Ricardo Carvajal, a lawyer at Hyman, Phelps & McNamara in Washington, D.C. and a former associate chief counsel at the FDA, said "the most likely action" by the U.S. agency will be a warning letter declaring that the products contain an unapproved food additive.

"The presumption under the law here in the U.S. is if you're using a food additive in a manner that is not approved by the FDA, then it is unsafe as a matter of law, even if it doesn't pose a risk," said Carvajal, who worked at the FDA for five years until leaving in 2007.

"It's a technical point, but we could have something here that is both unsafe in the legal sense and unsafe in the everyday meaning of that word."

Since the federal review began last November, New York has joined Michigan, Utah and Washington in moving to ban some caffeinated alcohol drinks.

Bill Crowley, spokesman for the New York State Liquor Authority, said on Tuesday that the earlier announcement means beginning on Dec. 10, flavoured malt-based alcohol beverages containing caffeine will no longer be distributed for sale at grocery and convenience stores in the state.

The distribution of Four Loko, a fruit-flavoured malt liquor beverage with a 12-per-cent alcohol content and the equivalent caffeine of a cup of coffee, will end even sooner, he said. The product, not available in Canada, has been linked to the deaths and injury of a several young Americans in recent months.

"The real concern is the fact that they have such tremendous amount of alcohol, they have the caffeine and they're very sweet," Crowley said. "It masks the taste of alcohol and the caffeine seems to mask the short-term effects of the alcohol."

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